Off-Duty Marijuana Use: Can I Be Fired for Smoking Pot Legally?

Your employer might have the right to fire you for legal marijuana use.

With a number of states legalizing medical and recreational marijuana in recent years, many employees wonder whether they are protected from being fired for smoking pot. In all states, it’s clear that employers are free to fire employees for being under the influence of marijuana at work. But what about off-duty use? In most states, employers are permitted to fire or discipline employees who test positive for marijuana on a drug test—even when the employee is using marijuana legally and outside of work hours.

Medical Marijuana Use

More than half of the states have medical marijuana laws on the books. In a majority of these states, the medical marijuana laws do not address whether an employer can fire an employee for using prescription marijuana outside of work hours. However, courts that have considered the issue have consistently held that employers are not required to accommodate an employee’s use of prescription marijuana. In other words, most employers can fire employees for legal medical marijuana use.

Courts have sided with employers against even the most sympathetic employees. In Coats v. Dish Network, the Colorado Supreme Court heard a case from an employee who was quadriplegic and needed medical marijuana to control leg spasms. The employee only used marijuana during non-working hours, but was fired after testing positive for marijuana during a random drug test. The employee sued, arguing that under the state’s “off-duty conduct” law, it was illegal for an employer to fire an employee for engaging in lawful activities outside of work. However, the Colorado Supreme Court ruled against him. The court held that, even though medical marijuana was legal under state law, it was still illegal under federal law and therefore not protected as a “lawful” activity. Courts in California, Oregon, and Washington have also ruled against employees in these situations.

However, some states—including Delaware and Arizona (among others)—have laws that expressly prohibit employers from discriminating against employees based on the fact that they are medical marijuana patients. In these states, employers typically cannot fire employees for prescription marijuana use unless they are under the influence at work. These laws do not prohibit employers from discriminating against medical marijuana patients in order to comply with federal requirements (for example, as a condition of receiving federal funding).

Recreational Marijuana Use

Several states—including Oregon, Washington, California, Nevada, Maine, Massachusetts, and Alaska—have passed laws legalizing marijuana for recreational use. However, these laws generally do not protect employees from being fired due to their off-duty marijuana use. In fact, many of these laws expressly state that they do not affect an employer’s right to continue to enforce zero tolerance workplace drug policies. Because many state courts have held that employers can fire employees for off-duty medical marijuana use, the result is likely to be the same for recreational marijuana users.

Improper Drug Testing

The rules above assume that the employee tested positive for marijuana on a legally administered drug test. If the drug test itself violated the law, the employee cannot be fired based on the results. While federal law does not place restrictions on drug testing, the laws of many states do. (Federal law does protect employees who take prescription drugs for a disability; for more information see Can I be fired if I test positive for a drug that was prescribed by my doctor?)

Many states have laws addressing when and how employers can conduct drug tests. In general, employers have much more leeway to test applicants than current employees. Employers are typically free to routinely drug test applicants after making a conditional offer of employment. However, in some states, employers are not allowed to conduct routine or random drug testing of employees who are already working for the company. Instead, the employer needs a reason to test a specific employee, such as:

the employee appears intoxicated at work

the employee was involved in a work-related accident that resulted in injury or property damage

the employee is returning to work after a rehabilitation program, or

the employee holds a safety sensitive position.

Even if the employer has the legal right to test, many states impose procedural requirements that the employer must follow. Many states, for example, require that the employer:

provide advance notice to the applicant or employee

use a lab certified by the state

pay for some or all of the testing costs

give the applicant or employee an opportunity to challenge the results, and

administer the test in a way that minimizes intrusion into privacy.

To learn more about the rules on drug testing in your state, see our Testing at Work page and select your state under “Employee Drug Test Laws.”